1993 PLP 2357 (CLC)

The second appeal is addressed against the judgment and order of the learned Additional District Judge, Bhimber, passed on September 20, 1992 whereby the order of the learned Sub‑Judge, Bhimber passed on November 12, 1990, resulting in decreeing the suit for possession by pre‑emption in favour of Muhammad Shafait, the pre‑emptor, was maintained.

2. Sardar Ali, father of Muhammad Shafait, pre‑emptor‑respondent, alienated the suit land comprising Survey No. 501, measuring 4 Kanals 17 Marlas, situate in Village Bandala‑Sudhairi, Tehsil Bhimber, in favour of Ghulam Nabi, for a sum of Rs.20,t

00. The sale‑deed was registered on May 20, 1985. Muhammad Shafait pre‑empted the sale by virtue of relationship with the vendor, by bringing a suit for possession on May 19, 1986. Ghulam Nabi alienated the suit land during the pendency of the suit in favour of Lal Dili, Noor Hussain, Manzoor Hussain, Nazir Hussain, Maqbool Hussain and Shabbir Hussain. The aforesaid vendees were impleaded as defendants by furnishing an amended plaint in the trial Court. Ghulam Nabi, the first vendee, and Lal Din and others, the subsequent vendees contested the suit of pre‑emptor on the ground that the transaction of transfer of land was an exchange and not a sale, as claimed by the pre‑emptor. They further alleged collaboration between the first vendor and the pre‑emptor, on account of their relationship.

3. Muhammad Shafait appeared as witness and produced Zaidullah and Allah Dad in support of his claim. On the other side, the vendees produced Ghulam Nabi, Abdul Hamid and Noor Hussain. No evidence was led in rebuttal by the pre‑emptor. The trial Court decreed the suit as, in its view, the transaction of transfer was a sale. The prior right of purchase of the pre?emptor for his being son of the vendor, was admitted and proved. The claim of the defendants that the transaction of transfer was an exchange, was disbelieved. This finding was upheld in first appeal.

4. Mr. MY Arvi, the learned counsel for the appellants, moved an application for additional evidence. The application was accompanied by an affidavit and a `Panchayatnama', in support of the alleged transaction of exchange. It was explained that the `Panchayatnama' was delivered to the counsel who acted on behalf of the vendees in the trial Court but it was not deemed expedient to produce the same in evidence. It was prayed that the `Panchayatnama' was a material evidence in the case, as such it may be admitted as additional evidence. The contention was opposed by Raj; Muhammad Siddique Khan, the learned counsel for the opposite side.

5. The rule relating to additional evidence has been described in Order: 41, Rule 27, C.P.C. Under sub‑rule (1), it is provided that the parties to an appeal shall not be entitled to produce additional evidence, whether oral documentary, in the appellate Court. Thus, an explicit restriction is imposed whereby the parties to an appeal are divested to claim production of additional evidence in the appellate Court. However, the appellate Court has beer empowered to allow additional evidence in the following cases:‑‑ (i) When the Court from whose decree the appeal is preferred, refused to admit evidence which ought to have been admitted, or (ii) the appellate Court itself requires any document to be produced or witness to be examined, to enable it to pronounce the judgment, or (iii) for any other substantial cause. The order of the appellate Court has to rest on valid reasons.

6. In present case, it is conceded that the first two conditions are not available for acceptance of additional evidence. The learned counsel for the appellants has relied on the last condition and elaborated that for no fault of the appellants, the document was withheld by the counsel at the time of filing of the written statement.

7. The term, "for any other substantial cause", is not to be construed strictly in a narrow sense as the framer of these provisions, with deliberate objective, conferred power on this Court to allow additional evidence when the Court was satisfied that the production of such evidence was imperative to meet the ends of justice. In order to exercise the discretion in a suitable case, it was enjoined upon the Court to ensure bona fide of the party seeking indulgence of the Court; prima facie genuineness of evidence; the emergence or existence of such evidence at the time of institution of suit or at the time of evidence and its relevancy to the point at issue. When these conditions are well‑satisfied, the Court, may not hesitate in allowing additional evidence in a suitable case. Conversely, when these conditions are not satisfied, the additional evidence may not be allowed in routine, particularly when it is admitted that the evidence was in existence at the time of production of evidence by the parties or before the announcement of the judgment of the trial Court and no step was shown to have been taken earlier for production of such evidence; or it was withheld without sufficient explanation or genuine reasons; or it appeared, prima facie, concocted, fake and fabricated likely to result in miscarriage of justice.

8. The consensus is that a party seeking production of additional evidence, may not be allowed to avail the concession, to patch up the, weak parts of its case or to fill up lacuna in its evidence. In present case, as noticed earlier, the sketchy explanation has been furnished which is not supported by the affidavit of the counsel who conducted the case, to make believe that the document in question was delivered to him for production in the Court alongwith the pleadings or in evidence. Besides, the document contains the signatures of Ghulam Nabi and Sardar Ali. Sardar Ali is an illiterate person. The sale‑deed executed by him carries his thumb‑impression. The summons issued by the Court to him, also bear his thumb‑impression. The signatures of Ghulam Nabi made on the `Panchayatnama' are compared with his admitted signatures on the `Vakalatnama' and other documents on the` file. These signatures do not tally. That reflects, prima facie, fabrication of the `Panchayatnama'. It is noted that Abdul Hamid, P.W. deposed that he was present in the `Panchayat' but his name is not included among the members of the `Panchayat' as described in the `Panchayatnama'. . He also failed to make reference to the fact that any `Panchayatnama' was prepared and signed by the parties and members‑of the `Panchayat'.

9. Muhammad Hussain son of Fateh Muhammad, D.W. also claimed his presence in the `Panchayat'. He failed to mention the preparation of `Panchayatnama' and endorsement of decision in it. The admitted signatures of Muhammad Hussain on his statement do not tally with the signatures on the `Panchayatnama'.

10. The aforesaid variations do not inspire confidence to believe the document as genuine one. Therefore, it is not considered of any worth for allowing it to be produced in evidence at this stage. The prayer is, therefore, turned down.

11. The finding on merits rests on question of facts. The concurrent findings of facts of both the subordinate Courts have not been assailed for any misreading, non‑reading or misconstruing of evidence. No other point was canvassed in support of the appeal. The appeal merits no consideration. It is, therefore, dismissed with costs. AA./9/H.CA. ????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.